Citation Nr: 1327099 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 06-11 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE 1. Entitlement to service connection for diabetes. 2. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability. 3. Entitlement to service connection for a heart disorder, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Vaughn Simms, agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran had active military service from August 1983 to June 1987. He had subsequent service in the Army National Guard between June 1987 and November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In May 2009, the Board denied the claims on appeal, as well as a claim for service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a depressive disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in December 2011, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision as to these issues and remand the case for readjudication in accordance with the JMR. In August 2012, the Board remanded the matter to satisfy an outstanding hearing request. In November 2012, the Veteran testified at a hearing before the Board; a transcript of the hearing has been obtained. In February 2013, the Board remanded the claims for further development and adjudication. In May 2013, the RO awarded service connection for PTSD (and awarded a 70 percent rating) and noted that this was considered to be a full and final determination of this issue on appeal. Consequently, there no longer remains a psychiatric service connection claim in controversy (as is further evidenced by the fact that such an issue was not recertified to the Board and the Veteran's representative no longer lists a psychiatric service connection issue in the appellant's most recent written brief). The Board does note, however that the Veteran has raised a claim of individual unemployability due to her service-connected PTSD. See Statement dated in May 2013. The matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Unfortunately, as the requested development was not completed, the appeal is once again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As noted in the Introduction, the claim was most recently before the Board in February 2013. The Board remanded the matter to obtain the Veteran's service treatment records (other than his entrance examination, which is already of record). In February 2013, the RO requested copies of the Veteran's service treatment records from the National Personnel Records Center (NPRC). The RO also requested "any separately stored in-patient hospitalization records pertaining to an admission at a hospital at Fort Sill Oklahoma in 1986." In March 2013, the NPRC indicated "there are no military personnel or medical records at Code 13 for this person." Given that the unobtained service hospital records are Federal records, to fully assist the Veteran with his claim, the Board feels that an additional attempt must be made to obtain in-patient hospitalization records dated in 1986 directly from the hospital at Fort Sill Oklahoma. 38 C.F.R. § 3.159(c)(1). As the matter is being remanded, an additional attempt should also be made to obtain private treatment records of the Veteran from Dr. R for his diabetes. Id. The Board also previously requested records of treatment for diabetes, hypertension and cardiovascular disease that the Veteran may have received from the North Little Rock VAMC in Arkansas since November 2004. The May 2013 supplemental statement of the case lists treatment records from the North Texas VA Medical Center (VAMC) dated from November 2004 to October 2008 and Little Rock VAMC from August 2008 to October 2008; however, these records have not been associated with the Veteran's paper claims file or virtual record. The Board notes that a check of Virtual VA (VA's electronic databases storage) shows that CAPRI records were added in February 2013 and described as treatment between November 2004 and October 2008; however, the file actual contains only records dated from September 2001 to November 2001. In order to properly adjudicate the maters on appeal, these records must be available for the Board's review. Thus, the identified records must be associated with the claims file (paper or virtual record). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). The Veteran was also to be afforded the appropriate VA examinations to determine the nature, extent, and etiology of any diagnosed diabetes, hypertension and heart disorder that he may have. The Veteran was afforded such examinations in March 2013. With regard to the claim for diabetes, the examiner was asked to offer an opinion as to whether diabetes had its clinical onset in service or was otherwise related to service. In answering this question and determining that the Veteran did not currently have diabetes, the examiner stated the Veteran had never been diagnosed with diabetes or had findings consistent with the diagnosis of diabetes. No mention was made of the August 2004 VA progress note showing the Veteran was actively taking insulin injections. An addendum opinion must be obtained, which addresses this treatment record. Moreover, as the Veteran indicated he was diagnosed with diabetes while hospitalized during service at Fort Sill in 1986 and these records are still outstanding, the addendum must be sought after the records request for outstanding service treatment records has been completed. Finally, the Veteran also contends that his diabetes, hypertension, and heart disorder are secondary to his service-connected PTSD. See Veteran's Informal Hearing Presentation dated in July 2012. With regard to the claims for hypertension and heart disorder he additionally claims they are secondary to diabetes. Addendum opinions must be sought from the examiners who performed the March 2013 heart condition and hypertension examinations, which address the matter of secondary causation. The examiners are asked to address the questions set forth in the numbered paragraphs below. The February 2013 Board Remand is incorporated by reference. Accordingly, the case is REMANDED for the following action: 1. The RO should directly contact the hospital at Fort Sill Oklahoma and request copies of in-patient hospitalization records of the Veteran dated in 1986. If records cannot be obtained, the Vetran should be provided appropriate notice under 38 C.F.R. 3.159(e). 2. After obtaining the appropriate release of information forms, obtain records of post-service treatment of the Veteran for diabetes from Dr. R. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 3. Associate with the Veteran's paper claims file or virtual record, treatment notes from the North Texas VAMC dated from November 2004 to October 2008 and Little Rock VAMC from August 2008 to October 2008 identified in the May 2013 supplemental statement of the case. 4. Then obtain addendum opinions from the examiners who performed the March 2013 diabetes, hypertension, and heart condition examinations, if available. Otherwise, the opinions must be rendered by a similarly qualified medical provider. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) must be available for review by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records in Virtual VA or VBMS that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. A complete rationale must be provided for all opinions expressed. If the requested opinions cannot be made without resorting to speculation, the examiners must state this and specifically explain why an opinion cannot be provided without resorting to speculation. Based on the findings from the March 2013 examinations and review of the record, the examiners should answer the following questions: Diabetes: a) Offer an opinion as to whether it is at least as likely as not (50% probability or greater) that the Veteran has diabetes mellitus and if so, whether it had its clinical onset in service or is otherwise related to service. In answering this question, the examiner must address the Veteran's reports of being diagnosed with diabetes in 1986 at the hospital at Fort Sill Oklahoma and the August 2004 VA progress note showing the Veteran was actively taking insulin injections. (Note: other than the Veteran's entrance examination, service treatment records are not available. If there are no records available from the hospital at Fort Sill Oklahoma, in rendering the addendum opinion, the examiner must not state the "service treatment records contain no clinical records documenting diabetes" and discuss the fact that no such service treatment records are available for review.) b) The examiner must also address whether diabetes is caused or aggravated (permanently worsened beyond normal progression) by the service-connected PTSD. Hypertension and Heart Disorder: Offer an opinion as to whether hypertension and a heart disorder (identified as hypertrophy) is caused or aggravated (permanently worsened beyond normal progression) by the service-connected PTSD. Should the Veteran be diagnosed with diabetes mellitus, the examiners must also opinion whether diabetes caused or aggravated the Veteran's hypertension and/or heart disorder. The examiners are informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the baseline before the onset of the aggravation. 5. In the interest of avoiding further remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal, to include any pertinent evidence contained within Virtual VA or VBMS. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).